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Just a few months after the U.S. Supreme Court narrowed the applicability of the federal Telephone Consumer Protection Act (TCPA), Florida has enacted a law that imposes broad prior consent requirements on phone and text solicitations and provides for statutory damages and a private right of action for violations.

TCPA-Like Florida Law Takes Effect

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Just a few months after the U.S. Supreme Court <a href="https://www.mofo.com/resources/insights/210405-supreme-court-ruling-limits.html">narrowed</a> the applicability of the federal Telephone Consumer Protection Act (TCPA), Florida has enacted a law that imposes broad prior consent requirements on phone and text solicitations and provides for statutory damages and a private right of action for violations.Governor DeSantis signed <a target="_blank" href="https://www.flsenate.gov/Session/Bill/2021/1120/BillText/er/PDF">CS/SB 1120</a> on June 29, 2021, and the law took effect on July 1. The law prohibits a person from making a telephonic sales call to a consumer if the call involves “an automated system for the selection or dialing of telephone numbers or the playing of a recorded message” (emphasis added) – unless the caller has the consumer’s prior express written consent. Notably, when compared with the TCPA:<ul><li>The Florida law does not define an “automated system,” but, on its face, the term may be broader than the federal definition of an “autodialer” because it is not limited to equipment that uses a “random or sequential number generator” to store or produce phone numbers, as recently narrowed by the U.S. Supreme Court. The Florida law extends to calls that “involve” an automated system for “selecting or “dialing” numbers and also to pre-recorded messages, however dialed.</li><li>Unlike the TCPA, Florida’s prohibition covers only calls to consumers and not to business cell phones as the TCPA does. </li><li>The Florida law covers calls to both consumer cell phones and consumer landlines.</li><li>The Florida law imposes the same prior express written consent obligation as federal law on the delivery of prerecorded marketing messages.</li><li>Florida’s definition of a “call” includes a marketing text message sent to a consumer (but not to a business).</li><li>Florida’s definition of “prior express written consent” mirrors that of the TCPA.</li></ul>With its provision of statutory damages of $500 per violation, with possible trebling for willful or knowing violations, the Florida law hands plaintiffs’ attorneys a new tool for going after calling and texting campaigns. Companies should review their campaigns to ensure compliance.